One summer a few years back — and in a different cultural setting –I observed the results of failing to follow a basic negotiation principle. I was in El Salvador with my daughter, one of my sons and a group from our church, helping to build houses in the remote village of San Jose del Naranjo. At one point, we needed to purchase adobe bricks to build the stove. We followed the owner of the home to the village’s version of Home Depot: a husband and wife operation where they stored various building materials in a yard next to their house. But unlike Home Depot there were no prices marked, so a negotiation needed to occur. I played no part in the negotiation. I do not speak Spanish and was simply there to help carry back some of the bricks. But, notwithstanding the language barrier, I was able to observe the negotiation and was intrigued by what transpired.
Our homeowner and the husband negotiated back and forth, and apparently agreed upon a price for the bricks. He then motioned to my son, me and other members of our group to start picking up the bricks. At that point, the woman of the house — who had been silently observing the entire process — waived us off and started a new negotiation. I do recognize numbers in Spanish, so I was able to determine that she used the number agreed upon by her husband as the starting point for her negotiation. And her husband stood by meekly, as the actualdecision maker of the household negotiated the final price. We were then allowed to gather up the agreed-upon number of bricks and carry them back to the construction site.
This transaction in a small El Salvadoran village reconfirmed to me an important negotiation principle: it is important to identify the decision maker. And this principlecertainly applies in the context of mediation. Although the parties with “full authority” are expected to attend the mediation, be careful not to assume who is making the ultimate decision on the other side of the table. A few examples come to mind:
• Similar to what I experienced in El Salvador, I have been involved in a number of mediations where it was assumed that the husband was making the decisions whereas, ultimately, the decision maker was the wife.
• We normally assume that it is the insurance adjuster who is making the money decisions. But, based upon policy terms or the amount of the deductible, the ultimate authority may be in the hands of the insured.
• Notwithstanding potential ethical issues, often it is the lawyer — rather than the party — who is the ultimate decision maker in the room.
Identify the decision maker early in the mediation process. You may be able to determine their identity during the joint session, based upon the responses that are being received during separate caucuses or, ultimately, the mediator may tell you who is making the decisions in the other room. But you should identify the decision maker as early in the process as possible, in order to focus your negotiation strategies and maximize the possibilities of settlement.